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Isabelle Lake Memorial Lecture. Law and Culture: Australia's Transgender Awakening

Rights Rights and Freedoms

About

The Isabelle Lake Memorial Lecture is an initiative of the Equal Opportunity Commission of Western Australia in partnership with the University of Western Australia to honour the work and achievements of Ms Isabelle Lake. Ms Lake was a young trans rights activist, who was also a former employee of the Equal Opportunity Commission and University of Western Australia student.

Isabelle’s work on the Equal Opportunity Commission’s Challenging Gender and Sexuality Based Discrimination and Bullying in Schools project, her volunteer roles at the Freedom Centre and WA Gender Project demonstrated her strong commitment to ensuring equality and inclusion for all.

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Introduction

Thank you.

It is a great pleasure to be invited to give the 3rd Isabelle Lake Memorial Lecture.

I would like to begin by acknowledging friends and family of Isabelle Lake today, and importantly Sally, Bruce and Max Lake for their attendance.

I would like to thank your wonderful Equal Opportunity Commissioner, Allanah Lucas, for the invitation and opportunity to speak today.

What I love about Allanah is not just her enthusiasm and her energy and her funky dress sense, but her understanding of the role of culture in helping to achieve systemic change.

I would also like to acknowledge the work of the WA Equal Opportunity Commission and their ongoing leadership in challenging prejudice against lesbian, gay, bisexual, transgender and instersex (LGBTI) people in Australia’s frontier state. And I say ‘frontier state’ with absolute affection.

Lake’s legacy

Frontiers call pioneers. Pioneers are leaders of new territory and the seemingly unknown. As far as I am aware, this is the only annual lecture in the country dedicated to discussing transgender issues and it is a fitting memorial for one of West Australia's pioneering daughters.

As you know, Lake transitioned shortly before tragically dying from a rare form of Leukemia. Lake was a passionate advocate for LGBTI rights and freedoms, and worked extensively with the Freedom Centre and WA Aids Council.

This lecture was established to honour her memory, but also ensure the continuation of her all too short life's work.

And that is the task before us all: to ensure the experience of the next generation of trans-Australians is better than those before, and to make sure Australia is a more open, supportive and inclusive country regardless of your sexual orientation or gender identity.

Some of you may have read a recent article in the West Weekend magazine covering Lake’s story from being a ‘miserable, isolated and confused’ Nick to a proud, confident and contributing Isabelle.

Her story is powerful. But behind the headline of her lived experience was the story of empathy from her family during her transition. Building empathy sits at the heart of improving the lives of transgender Australians and ensuring future generations enjoy a better life than those of the past.

The human rights of transgender Australians

As Australia’s sixth Human Rights Commissioner I have taken a different approach from my predecessors. Many contemporary human rights activists approach human rights as gifts of international treaties negotiated by governments and to be negotiated by diplomats and interpreted by courts.

I don’t share that contemporary view. I believe in a classical liberal view of human rights. A classical liberal approach recognises that the very concept of human rights is built on the compounded knowledge of thousands of years of philosophical reasoning about the basic liberties that all people possess as a consequence of our born faculties. They are built on the inherent dignity that comes with birth, and that every individual owns their own body and that they should be free to pursue their lives, their opportunities and their enterprise so long as they do no harm to others.

In this context the role of government is to establish formal equality. Formal equality is when each person is treated equally by the law and government.

It's not the job of government and the law to tell people who they are. That's social engineering. It's the job of government and law to respect who people are. 

The classical liberal approach sits with perfectly with respecting trans-people. Underpinning a classical liberal approach to human rights is a strong commitment to bodily autonomy and that government should not discriminate.

Many contemporary human rights activists are much more focused on advancing informal equality by using government to focus on outcomes.

I am not opposed to focusing on advancing informal equality, but not at the expense of formal equality; least because LGBTI Australians are denied the latter.

The importance of human stories

Shortly after my arrival at the Australian Human Rights Commission I took on the role as de-facto Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) issues.

Anyone familiar with the structure of the Commission knows that we have Commissioners for Age, Disability, Race and Sex Discrimination, as well as the Children’s Commission and the Aboriginal and Torres Strait Islander Commissioner. SOGII issues have always been structurally absent.

There's a natural synergy between serving as Human Rights Commissioner and de-facto SOGII Commissioner.

LGBTI Australians still don't enjoy formal equality before the law and fair and equal treatment by government. LGBTI Australians are actually unique: they still face State-sanctioned discrimination at both State and Federal levels, let alone issues that emerge from informal equality.

Of course you will be familiar with many of the issues. Lesbian, gay and bisexual people are restricted from marrying their partners. Intersex Australians face forced gender assignment and sterilisation at birth.

But the lingering and most extensive discrimination is faced by transgender Australians. In relationships where one partner of a married couple fully affirms their gender by the law necessitates a divorce. I can't think of anything more surreal and disturbing than the government and law breaking consensual, resilient families and relationships apart. But as this audience will know there's similarly complex and difficult challenges faced in changing official documentation from birth certificates, drivers licenses and passports, to name a few. Then there's the lingering challenges from the gendered nature of the health system and how it diminishes a trans-Australians access to medical care. And that assumes that the medical system can aid people.

The Australian Government Guidelines on the Recognition of Sex and Gender is an important part of that process. But more needs to be done, especially at a State level. Effecting change at a State level also requires a degree of national coordination.

To commence this work I announced last year that we would be completing a national consultation to look at the legal and non-legal challenges faced in the SOGII portfolio. The report from these consultations will be launched soon.

As part of this process we held a series of public and targeted meetings to collect evidence and garner insights into the lived experience of Australians. We also put a premium on collecting stories so we can give these often ignored voices a national platform.

Behind all human rights issues are human stories.

In Brisbane I met with the parents of trans-teens. The parents joined PFLAG seeking mutual support and understanding for their teens and themselves as they navigated their unexpected journey. Behind the discussion around doctors, access to medical services and their children's school experience was the universal Australian parental experience.

These parents just wanted the best for their children and for them to live fulfilling and rich lives. And rather than letting stigma or social pressure define their families, they've been drawn together to create a new and different type of village to raise their children.

Throughout our consultations we heard from lots of patents that have faced these challenges, supported their children and watched them blossomed into the adults they always hoped they'd be. One parent wrote:

We love our daughter and her siblings totally adore her for who she has grown into, who she is! We can’t even tell you what families have to go through and [this submission] hasn’t even scraped the surface of what our beautiful children have to endear on their journey through life![1]

Another wrote:

Our son is keen to become an advocate and had taken on the leadership role in his school as Wellbeing captain. In his application speech to the school community he spoke about how being transgender has made him stronger and more positive about life. He suggested it has helped him deal with difference and that he feels he can support other kids who feel different.  We are extremely proud of him and fully aware that we are very lucky to be. Living in an age where he is supported and encouraged to be just who he is.[2]

Of course not all stories would fill you with a warm inner-glow. Many continue to struggle because they can't get the support they need. One parent wrote:

My son is 17. He came out to me as being Trans when he was 12 years old. Now looking back he'd been struggling with his gender dysphoria from a very young age. Even now, life is a struggle for him every day. Afraid to leave the house, trouble at school and wishing he was dead. He's been diagnosed with gender dysphoria and he's on Puberty Blockers. If he could get hormone therapy (Testosterone) before he turns 18 years old and without going to court, he be healthier and happier. He tries to "pass" as male at high school but his voice hasn't broken (even though he tries to keep his voice low) and he lacks facial hair and other features that testosterone would help for him to "pass" as male. It's very frustrating and a suicide risk in my son's case that he is not "male" on his birth certificate and centrelink, Medicare still regard him as Female. I don’t want him to have to be 18 and have surgery just so he can have the right gender marker.[3]

The content and spirit of these reflections will be familiar to many of you, and for some may reflect your own lived experience.

But it isn’t just about individuals. Throughout our consultations we met ordinary people doing incredible work.

At the Alice Springs Women’s Refuge we met trans and intersex women who were working to end domestic and physical violence in Alice and surrounding Aboriginal communities. They were only armed with courage and reason in the hope that they may bridge the divide between ignorance and understanding.

In remote communities we’ve met with trans-Aboriginal-Australians facing cultural barriers and heard their unique stories of securing social acceptance for Sistergirls and Brotherboys.[4]

In Victoria I met with Peta Ferguson who heads Brain Injury Matters, a non-government organization dedicated to raising the profile of Acquired Brain Injuries and to provide support for those that live with them.

In South Australia and Queensland we met with clinical practitioners working to assist trans-Australians navigate the hormonal path from gender assignment to affirmation.

The lives of transgender Australians

Many transgender Australians live lives of success where they achieve their dreams for themselves and their loved ones. But as we know that isn’t true of everyone, and, at least at key stages of their life, it is not easy.

Many trans-Australians live decades struggling with the internal tension and anxiety of not having their psychological and physical gender in alignment; and complicated by the dual excitement and deep-seated fear of the life they might live if they seek to correct it.

That fear is understandably driven by the honest assessment that you're different, most people won't understand you and the unknown treatment you'll receive from friends, family and society for your honesty.

It's also backed up with real-world experience. According to the Private Lives 2 Report around 40 per cent of trans-men and women report experiencing some sort of verbal abuse, and around a quarter some form of harassment. More than one in ten experience threats of physical violence or attacks.[5]

Depression rates are also disturbingly high, according to the TranzNation Report is best ameliorated by simple social engagement and routine of having a stable family, friendship and work environment.[7]

More recently the First Australian National Trans Mental Health Study unsurprisingly found that, of those that participated, 43.7 per cent experienced ‘clinically relevant depressive symptoms’, and more than a quarter (28.8 per cent) met the criteria for ‘a current major depressive syndrome’.[8] Trans-Australians ‘appear to be 4 times more likely to have ever been diagnosed with depression that the general population’.[9]

I’d like to say these results shocked or surprised me. But they don’t.

As the Chair of the National Mental Health Commission, Allan Fels, wrote in The Australian last year:

Suicide and mental health problems in the LGBTI community are an enormous issue, but one that seems to be invisible.[10]

The necessity of a culture of respect

Until recently both law and culture has been disinterested in the protection of trans-Australians. It was only in 2013 that Federal laws were changed to stop discrimination, and there is still a long road ahead in reforming all necessary State laws to respect lived reality.

Laws matter. We give a lot of deference to their power. They undoubtedly have an educative effect. But in practice we give them too much credit because they are easy to identify and establish clear standards. It probably doesn’t seem that way at the time, but they are the easy bit.

The necessary work to entrench a culture of respect is much more vague, organic and harder to achieve. But it is also where the most fruitful work is done. Law is very successful in establishing the relationship between citizens and government, it is also effective at establishing legal frameworks for explicit relationships between people. Law is a poor instrument to establish daily, respectful relationships between individuals. It can inform that relationship, but culture and social expectations play an incredibly important role.

As the great Scottish Economist, Adam Smith, argued in his Theory of Moral Sentiments the success of people:

..almost always depends upon the favour and good opinion of their neighbours and equals; and without a tolerably regular conduct these can very seldom be obtained.[11]

In short, people regulate their conduct to be held in the good standing of others. People regulate their conduct and primal instincts because society expects them to do so and extend a degree of respect if they want to enjoy the same respect in their lives.

Anyone who has tried to break a lifetime habit knows how difficult it can be. But we are not trying to break a lifetime habit. The challenge that confronts us is breaking a civilization-long tradition of indifference, disinterest and outright hostility toward transgender people.

For some that might sound like an insurmountable challenge; yet recent history shows that it is a challenge we can very capably overcome.

While there have been moments in history where homosexuality between men and women has been tolerated and accepted, the cultural and legal experience of gay, lesbian and bisexual people is not radically dissimilar.

It was only around thirty years ago that Australian States, and a little less in the case of Tasmania, decriminalised homosexual activity between consenting adults. While the exact dates differ, Australia’s story is similar to those of many other Western liberal democracies. In that relatively short period of time public sentiment has shifted from justifying criminal sanctions to decriminalisation, to equal treatment under the law, to wondering why legislators are now dragging their feet and rebuffing inclusion of same-sex couples into the time-tested and conservative institution of marriage.

Concurrent to law has been a change in social attitudes as friends, family members and colleagues have ’come out’ and improved the understanding of average Australians about what it means to be gay, lesbian or bisexual in 21st Century Australia. Of course we are not at the end of history, there is still more work to be done. But in thirty years we’ve essentially reversed thousands of years of historical, cultural and social understanding.

The challenge is to now do the same for transgender people.

Empathy as a leader to respect

Beyond Blue recently released a new advertisement under the theme of left-handedness. If you have not seen the advertisement, it portrays a left-handed young man facing constant stigma from his family, school and peers for his seeming difference. At the end of the advertisement it asks the simple question:

Imagine being made to feel like crap just for being yourself ... It's the same for gay, lesbian, bi, trans and inter-sex people. The things we say and do cause anxiety and depression.[12]

In an interview on why the advertisement was pitched in this way a Beyond Blue spokesperson identified that research, particularly amongst teenage males, showed that simply asserting the inappropriateness of discrimination on the basis of sexual orientation or gender identity was not sufficient to change behavior. Instead the research concluded that the message had to be relatable and engender empathy.

Sympathy is not the same as empathy. Sympathy is about one person feeling sorrow for the situation of another. Empathy is about being able to understand the situation of another.

Empathy only comes through a degree of familiarisation. That is what the Beyond Blue advertisement seeks to achieve.

Familiarisation is fundamentally important to advance the awareness, mindfulness and respect for transgender Australians. Unfounded negative attitudes towards people who are different or unfamiliar to yourself only change when people have exposure and find the common-ground between those they don’t know and get to know them. Achieving that objective is not about simply passing a law telling people they have to respect transgender Australians. It requires connection and communication.

Empathy goes both ways

Transgender people go through an incredible journey in life. It is an experience no everyone can relate to. That should not be used as an excuse for absent effort or respect.

It is something we all need to be mindful of when acknowledging efforts to improve respect.

As some of you will recall, late last year Catherine McGregor made her debut appearance on ABC1’s Q&A. I am very fortunate to count McGregor as a friend and she is a wonderful Ambassador for trans-Australians.

My colleague, Liz Broderick, is fond of saying ‘you can’t be what you can’t see’. McGregor is not the first trans-Australian to make a significant national contribution, but her preparedness to be candid and open is immensely important. She has become a beacon for others to shine a light on the gap between the sea of their confused thoughts and a safe harbour that provides the security for a prosperous future.

I understand it is the first time a trans-Australian appeared on that program, and she is probably one of the few on any national television program.

Her Australian Story, Call Me Cate,[13] was transformative television for many Australians, particularly with the warm and very welcome introduction from our Prime Minister, Tony Abbott.

McGregor’s story is not alone. The more recent 4 Corners episode, Being Me,[14] that focused on the story of another Isabelle and her capacity to access puberty blockers and hormone treatment so that she could mature into her full adult self. As a friend commented to me after watching Being Me, ‘she was so brave’.

It isthese human stories that are writing the pages of the story of Australia’s transgender awakening and acting as the building blocks of a culture of respect. But as we all know, we still have many more bricks to lay.

These stories do not sit in isolation. Norrie’s successful challenge to New South Wales’ laws is a significant step as well.

Importantly trans-Australians have a responsibility to be mindful that other Australians are going through this awakening and learning how to fully respect trans-Australians for the first time.

The role of trans-Australians is to foster this experience, not condemn people for putting a foot wrong.

When McGregor appeared on Q&A last October a series of tweets appeared on the screen from a praising Geoff Cooper who extolled that “Wow she/he is a hero”. Some people, including trans-Australians, understandably felt this language was insensitive and didn’t appreciate how trans -people like to be addressed. And they’re right.

Cooper’s tweet might have been unfortunate, but his praiseworthy intention was clear. Impatience for perfection doesn’t bring it closer or more familiar. Familiarity breeds understanding about how to address people with respect, not beating people over the head when they mean well. It's precisely why discussion needs to be free and open. No one becomes more familiar through censorship or being hounded down.

Everyone needs to learn for the first time: individuals and institutions. The seemingly complicated use of pronouns and that different trans-Australians want depending on whether they want to be respected and ‘pass’ as their affirmed gender, be known as a trans-person or for no gender at all, is not straight-forward for who don’t have this lived experience.

It is as important that trans-Australians have as much empathy for other Australians trying to understand their experience, and vice versa.

The importance of unlikely allies

The other significant reason that we must engender empathy is because it builds the alliance for change.

The Prime Minister’s introduction to Call Me Cate didn’t occur because he had and distant and unknown relationship with McGregor. It occurred precisely because there was a pre-established relationship and she was in a position to explain her story.

Similarly, some of the most empathetic supporters of the interests of trans-Australians that I have met have been from religious communities who don’t draw moral guidance on trans-people from scripture, but look to a shared human experience.

The story of human advance is never built solely on the actions of one political movement, group or individual. It is built on the collective efforts of people individually and collectively seeking change, and the full spectrum of supporters they father along the way.

Like the felling of a tree, social and cultural change doesn’t occur through a singular strike, but through the gradual chipping away from different angles, all faced roughly in the same direction and toward the same purpose.

That is the task ahead of all of us who see trans-people as just that, people; with common bonds and a shared humanity that through knowledge and experience we can all empathize with.

It’s this spirit that will help drive reform to address many of the significant challenges still faced:

  • Engagement with teachers and students about creating safe and respectful schools.
  • Improving access to information for individuals, and parents of children, that question their gender.
  • Cooperating with sporting and civil society organisations to encourage and foster trans-participation as equals.
  • Sufficient and appropriate research to improve understanding and awareness of the unique challenges faced by trans-Australians.
  • Working with the academy and the educational and medical fraternity to build into formal education awareness for the unique challenges faced by trans-people.
  • De-gendering social welfare and access to health systems so, when updated, they can properly respect trans-Australians.
  • Working with existing health practitioners to improve their understanding about how to assist trans-Australians that present questioning their gender.
  • Developing policies and practices in workplaces to ensure trans-Australians are able to make their maximum contribution.
  • Cooperating with aged care facilities and their staff, often from different cultural backgrounds, to respect and support trans-individuals and couples at one of the most vulnerable stages of their lives.

It’s these efforts that will turn the aspiration of many of our laws into a lived culture.

Conclusion

I am not going to dispute that there is a long road to be walked. But after hundreds, if not thousands, of years of history of not taking a step, at least we can now say we are walking.

In her induction into the WA Women’s Hall of Fame Isabelle Lake was described as ‘passionate, not bitter, in her response to life and very driven to help those impacted by life’s challenges who were not treated fairly. Her star burnt briefly but brightly.’

That is a motto we should all aspire to live by. It is one we will all need to take Australia’s transgender awakening to a culture of lived respect.

Thank you.

ENDS


[1] Australian Human Rights Commission, ‘SOGII Snapshot Report’ (Research Report, due for publication 25 May 2015) Submission
[2] Ibid
[3] Ibid
[4] A Note on Terminology, ‘SOGII Snapshot Background Paper’, “Brother Boys” and “Sister Girls” are the terms used to describe trans-men and trans-women Aboriginal Australians.
[5] 6 William Leonard et al, ‘Private Lives 2: The second national survey of the health and wellbeing of gay, lesbian, bisexual and transgender (GLBT) Australians’ (Research Report No 86, The Australian Research Centre in Sex, Health & Society, La Trobe University 2012) 47 [Table 31]
[7] Murray Couch et al, ‘TranZnation A report on the health and wellbeing of transgendered people in Australia and New Zealand’ (Research Report, Australian Research Centre in Sex, Health & Society, La Trobe University 2007)
[8] Zoe Hyde et la, ‘The First Australian National Trans Mental health Study’ (Research Report, School of Public Health, Curtin University Perth Australia, 2014)
[9] Ibid
[10] Allan Fels ‘Invisible pain for LGBTI People’, The Australian (online), 14 August 2014 http://www.theaustralian.com.au/opinion/invisible-pain-for-lgbti-people/story-e6frg6zo-1227023502646

[11] Adam Smith ‘Of the corruption of our moral sentiments, which is occasioned by this disposition to admire the rich and the great, and to despise or neglect persons of poor and mean condition 1759’ in ‘The Theory of Moral Sentiments’, (Salvio Marcelo Soares, 2005) 55 [5]

[12] Stop. Think. Respect: left Hand ad (Beyondblue, 25 March 2015) http://www.beyondblue.org.au/general/video-transcript?id=3eb112aa-f371-61bc-846e-ff0000e9d3fc

[13] ABC, ‘Call Me Cate’, Australian Story, 24 February 2014 (Tony Abbott) http://www.abc.net.au/austory/content/2012/s3947934.htm

[14] ABC, ‘Being Me’, Four Corners, 17 November 2014 (Janine Cohen) http://www.abc.net.au/4corners/stories/2014/11/17/4127631.htm

Tim Wilson, Human Rights Commissioner